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 Post subject: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 03:49pm
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http://www.cnn.com/2012/05/31/us/massachusetts-same-sex-marriage/index.html?hpt=hp_t1

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Federal court strikes down key part of federal law banning same-sex marriage
By Bill Mears, CNN
updated 2:40 PM EDT, Thu May 31, 2012
Marriage between two males or two females is legal in seven states and the District of Columbia.
Marriage between two males or two females is legal in seven states and the District of Columbia.
STORY HIGHLIGHTS

At issue is whether federal benefits can be denied in marriages legal under state law
A three-judge panel of a federal appeals court says no
The appeals court notes it may ultimately be up to the Supreme Court to decide
The law is being defended by congressional Republicans, not the Obama administration

(CNN) -- A key part of the law banning federal recognition of same-sex marriage was struck down as unconstitutional by a U.S. appeals court Thursday.

The Defense of Marriage Act -- known as DOMA -- defines marriage for federal purposes as unions exclusively between a man and woman.

At issue is whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The ruling is a boost for gay rights advocates and the Obama administration, which in a rare move, has refused to defend a federal law in court.

"If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test," said the three judge panel.

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The 1st Circuit U.S. Court of Appeals, based in Boston, did not rule on the federal law's other key provision: that states that do not allow same-sex marriages cannot be forced to recognize such unions performed in other states. Traditionally, marriages in one jurisdiction are considered valid across the country.

DOMA was enacted in 1996, when Hawaii was considering legalizing same-sex marriage.

Marriage between two males or two females is legal in the District of Columbia and six states -- Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. It is set to become legal in Washington state next week and in Maryland in January, but in each state the implementation could be delayed by opponents placing the question on the November ballot.

Many other states have legalized domestic partnerships and civil unions for such couples, including New Jersey, Illinois, Delaware, Rhode Island and Hawaii, a step designed in most cases to provide the same rights of marriage under state law.

But other states have passed laws or state constitutional amendments banning such marriages.

Lesbian couple can file for divorce in Maryland, court rules

The appeals court said it recognizes how divisive the issue is, and noted it may ultimately be up to the Supreme Court to decide. But this decision is the first at this judicial stage to find the heart of the law unconstitutional.

"Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today," said Judge Michael Boudin, appointed to the bench in 1992 by President George H.W. Bush. "One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

Chief Judge Sandra Lynch, a Clinton nominee, and Judge Juan Torruella, a Reagan nominee, joined in the opinion.

It is in effect only within states with gay marriage laws covered by the 1st Circuit -- Massachusetts and New Hampshire -- and has limited enforcement. That means there will be no immediate eligibility for financial benefits currently denied same-sex married couples. No change is likely until the high court decides the matter.

Massachusetts had challenged Section 3 of the law on behalf of a group of seven couples. Similar lawsuits have been filed across the country.

Couples challenge Illinois law denying same-sex marriage

DOMA is being officially defended in court by House Republicans, led by Speaker John Boehner, R-Ohio, who stepped in after the Justice Department refused to participate. The Obama administration announced last year it believed the law to be unconstitutional.

A bill known as the Respect for Marriage Act is working its way through Congress and would repeal DOMA.

Congressional opponents of DOMA hailed the court's opinion.

"It's very good new for those who are fighting discrimination in any place, including in the area of marriage equality," said House Minority Leader Nancy Pelosi, D-California.

The case was argued in Boston last month. The lawyer for the couples said states have long-standing authority to control and define marriage, and that Congress has no right to intervene through DOMA, clearly designed, said the lawyer, as "disrespect" to lesbians and gays.

But Paul Clement, the private attorney hired by Boehner to defend the law, argued a congressionally mandated, uniform standard to define marriage for federal purposes is both proper and practical.

Obama calls for marriage equality, says 'I want everyone to be treated fairly'

Groups fighting DOMA were ecstatic at the decision.

"All Massachusetts couples should be afforded the same rights and protections under the law, and we hope that this decision will be the final step toward ensuring that equality for all," said the state's attorney general, Martha Coakley, who in 2009 filed the initial lawsuit challenging DOMA.

"As more loving same-sex couples commit their lives to one another in marriage, the harms of this unjust law become more clear," said Evan Wolfson, president of Freedom to Marry, "from service members, risking their lives to protect ours, being denied the ability to protect their own families through military medical insurance or survivor benefits, to senior citizens having to move out of their homes after their partners of many decades pass on because they cannot access Social Security protections afforded any other legally married couple."

There was no immediate reaction from Boehner or the Bipartisan Legal Advisory Group in the House of Representatives. But gay marriage opponents expressed confidence the Supreme Court would eventually reverse the ruling.

"Society should protect and strengthen marriage, not undermine it," said Alliance Defense Fund Legal Counsel Dale Schowengerdt. "In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too."

The issue has been working along two legal tracks. A federal appeals court earlier this month ruled against California's voter-approved ban on same-sex marriage, arguing the ban unconstitutionally singles out gays and lesbians for discrimination.

In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals found the state's Proposition 8 "works a meaningful harm to gays and lesbians" by denying their right to civil marriage in violation of the 14th Amendment.

Both the California and Massachusetts cases could soon be presented to the U.S. Supreme Court for review. The justices would have the discretion to accept one, both, or neither case -- perhaps deferring judicial review until a later time, after more lower courts have had time to debate the matter.

The case is Massachusetts v. U.S. Dept. of Health and Human Services (10-2204).


Another step forward at least.



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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 03:53pm
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It is time for me to dance the dance of equality. No, seriously, this is awesome, and delete this if it's dumb +1.



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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 05:23pm
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So the ruling only affects two states? How does that work?

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 06:16pm
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I thought it would affect four states and puerto rico. Basically, federal first district?

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 06:47pm
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Cosmic Average wrote:
So the ruling only affects two states? How does that work?

Since the decision is currently stayed in expectation it will immediately get appealed to the Supreme Court, it technically doesn't really change anything yet, although I suppose if theoretically it was not appealed that's what would happen.

The way it works is in the short term it potentially affects every state in the First Circuit Court of Appeal's jurisdiction, which is Maine, Massachusetts, New Hampshire, Rhode Island, as well as Puerto Rico, although it only really has an impact in states which have recognized gay marriage.

This means the immediate impact would be in Massachusetts and New Hampshire, although a vote in Maine could legalize gay marriage there as soon as this November. Because Rhode Island is now recognizing out of state gay marriages, at least with regards to the executive branch due to an order by the governor, it could also possibly apply at least to a limited extent there with regards to some tax issues.

Now in practice, especially since the ruling could impact things like the immigration rights of a partner in a gay marriage, there is no way things could be left with this sort of limited status quo in the long term.

While the Supreme Court could theoretically not hear the case and let it stand, that would leave all the other court districts which have states who recognize gay marriage to have to come up with their own rulings on the matter and would be rather untidy. (While technically I not aware of a lawsuit which would impact the circuit court which includes Iowa, its safe to say one would be filed virtually the instant the Supreme Court declined to hear this case, and this would quickly apply for Washington D.C. as well with the local government there also already recognizing gay marriage.)There would also be a substantial chance of some Circuit Court eventually ruling differently on this matter, forcing the Supreme Court to ultimately rule on this issue anyways. (It simply would be a preposterous situation if otherwise identical gay marriages are only recognized for the federal government for some states, and be clearly unfair for the negatively impacted states. It would also make it excessively difficult for the average citizen to understand what the current marriage laws are for a particular state if federal law applies differently in a practically unrelated manner in relation to the state law in question.)

In other words, this is an extremely clear case where you would expect it to be heard by the Supreme Court given the issues involved.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 06:55pm
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Cosmic Average wrote:
So the ruling only affects two states? How does that work?
It affects all states in the First District (four states plus Puerto Rico) IF those states issue marriage licenses to gay couples (which Puerto Rico, Maine, and Rhode Island do not). States that don't issue gay marriage licenses aren't affected by a federal law that denies federal benefits to married gay couples.

Although Rhode Island recognizes other states' gay marriages, that's totally irrelevant to this provision of DOMA. If Rhode Island, Maine, or Puerto Rico wants to issue gay marriage licenses, they fall under the heading of this appeals decision too. If any other state of the union wants to (or already has), they aren't affected yet.

Presumably, this will go to the Supreme Court. If the Supremes uphold the First Circuit Court's decision, then this will apply to all states: that component of DOMA will be overturned, and the federal government will have to extend marriage benefits to gay couples. For example, married gay couples will be able to file joint tax returns.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-05-31 07:02pm
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Cosmic Average wrote:
Although Rhode Island recognizes other states' gay marriages, that's totally irrelevant to this provision of DOMA. If Rhode Island, Maine, or Puerto Rico wants to issue gay marriage licenses, they fall under the heading of this appeals decision too. If any other state of the union wants to (or already has), they aren't affected yet.

I'm not entirely sure about this aspect of things. In particular if Rhode Island is granting certain benefits such as state healthcare insurance coverage for state employees to both individuals in the gay marriage on the basis that they have a legal marriage, I would wonder if the IRS would be required to treat the tax issue the same if it was a hetero marriage with regards to what is treated as pretax dollars or income.

I would be welcome to clarification from anyone who knows for sure and its possible the actual answer to this question is so unclear that an additional court case might be needed to resolve it.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-01 12:21pm
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My observations:

1. Gill reaffirms that Baker v. Nelson, 409 U.S. 810, 93 s. Ct 37, 34 L.E.2d 65 (1972) (mem) "that the Constitution [does not require] states to permit same-sex marriages, and held, within the context of this challenge, that "it ... limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage" slip op. at 12 Thus, a challenge to a state's marriage laws defining marriage as a "union for life of one man and one woman in the holy estate of matrimony", Murphy v. Ramsey, 114 U.S. 15 at 45 (1885), arising from a district court in the First Circuit, must fail.
2. The First Circuit plainly held that DOMA passes rational basis scrutiny. See slip op. at 14 ([u]nder such a rational basis standard, the Gill plaintiffs
cannot prevail.)
3. But since the case includes federalism concerns, something more than rational basis is required, even though sexual orientation is not a suspect classification. id. at 11 (governing
precedents under both heads [equal protection and federalism] combine...to require a closer than usual review based in part on discrepant impact among married couples and in part on
the importance of state interests in regulating marriage
.) Taking the First Circuit at its word, this "closer than usual review" would not be warranted where federalism concerns are absent, such as DOMA's application to immigration law and U.S. territories.
4. Congress had required several states to forever prohibit polygamy and plural marriage in their constitutions. See e.g. Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558, cited in Romer v. Evans, 517 U.S. 620 at 648 (...1996) (Scalia, J., dissenting) For some of those states, these provisions were required to be irrevocable. Thus, it was not merely sufficient that the states had to ban polygamy initially, but can never repeal those bans without the consent of Congress.

This is clearly an intrusion into "state interests in regulating marriage". And if the Supreme Court adopts Gill's reasoning, then the constitutionality of those provisions, at least to the extent they are irrevocable, would be in doubt, even if the Supreme Court is unwilling to hold that polygamy is a constitutional right.


Last edited by amigocabal on 2012-06-01 12:29pm, edited 1 time in total.
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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-01 12:26pm
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Gaidin wrote:
I thought it would affect four states and puerto rico. Basically, federal first district?

It would be binding on district courts in all those states and Puerto Rico. But its effect in Puerto Rico would not be identical as it would be in states like Maine or Rhode Island.

Puerto Rico is not a state. This is significant because Congress has plenary police power over Puerto Rico, including regulating marriage. Gill held that DOMA satisfies rational basis scrutiny. See slip op. at 14, and that a closer than usual review was required for this particular case because "governing
precedents under both heads [equal protection and federalism] combine" to require that. id. at 11. Federalism concerns are absent in applying DOMA to Puerto Rico, so rational basis scrutiny would apply.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-01 01:00pm
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Noting only two things here. The polygamy bans were based partly on cultural convictions that seem less important now than they did a hundred years ago anyway. And honestly, women's lib pretty much torpedoes the main practical reason not to allow polygamy- because the form of it that's actually ever been practiced in American society is really only a practical problem because it ropes women into being prestige tokens for wealthy older men.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-01 01:11pm
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The current culture doesn't do that anyway?



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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-01 01:18pm
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You're missing this. The fraction of Americans who would freak out about Mormons practicing polygamy back in 1896 was probably huge- almost everyone. The fraction today is smaller- there'd be a lot of people who just don't care very much and are willing to live and let live because of their not caring.

If a Utah full of religious separatist polygamists were applying to join the union today, the odds of the federal government demanding that they ban polygamy would be a lot lower, and I don't think it would be a deal-breaker if Utah said no. Whereas it was definitely a deal-breaker in 1896 if they said no.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-02 07:08am
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Simon_Jester wrote:
Noting only two things here. The polygamy bans were based partly on cultural convictions that seem less important now than they did a hundred years ago anyway. And honestly, women's lib pretty much torpedoes the main practical reason not to allow polygamy- because the form of it that's actually ever been practiced in American society is really only a practical problem because it ropes women into being prestige tokens for wealthy older men.

Yeah, not too many girls say, "I want to be a token when I grow up."

One must wonder why a substantial proportion of women in past generations were willing to be prestige tokens. Not that men were any less gullible...

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-02 12:19pm
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Because it's not like they were a lot worse off being one of many kept women forced to work in the household and keep quiet and never answer back, compared to how they were being the only one? When none of your options include freedom of choice and equality of status, it distorts the things you choose for yourself.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-07 05:35am
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Simon_Jester wrote:
Because it's not like they were a lot worse off being one of many kept women forced to work in the household and keep quiet and never answer back, compared to how they were being the only one? When none of your options include freedom of choice and equality of status, it distorts the things you choose for yourself.

That would be true.

On your earlier post on reasons not to allow polygamy, there are other reasons why people oppose polygamy. One reason is the belief that social acceptance of polygamy would sever the link between marriage and fidelity. A related reason is the belief that polygamy will also lead to acceptance of adultery, if fidelity and exclusiveness are torn from the foundation of the marital union. Another reason is the belief that it would undermine the interest in encouraging procreation from within a heterosexual monogamous union. Also, there is a belief that children raised in a polygamous household would not fare as well as children raised in a monogamous household.

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-07 01:10pm
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amigocabal wrote:
That would be true.

On your earlier post on reasons not to allow polygamy, there are other reasons why people oppose polygamy. One reason is the belief that social acceptance of polygamy would sever the link between marriage and fidelity. A related reason is the belief that polygamy will also lead to acceptance of adultery, if fidelity and exclusiveness are torn from the foundation of the marital union.
Just out of curiosity, why don't you think three people can be in an exclusive relationship? We do it in business all the time; why can't we do it in romance? Sure, if you say you can't do it I'll believe you. But you wouldn't be the one thinking about adding Person Three to a marriage, now would you?

Any remotely sensible law that allowed polygamy would require all members of the marriage to consent to the marriage, not just one. This is bad news for men who want to keep harems, but it's great news if you like fidelity. If Joe or Betty is does not care whether they are the only person their spouse sleeps with, why should you care? And if they do care, all they have to do is not sign that blasted paper.

You seem to be assuming that the state is obliged to "uphold fidelity" regardless of whether anyone in the marriage feels harmed by an act you call adultery. I don't think I agree. We talk about adultery as "cheating on Joe" or "cheating on Betty" for a reason: you are cheating, you are violating a specific promise in a way that will hurt a specific person. You are not committing a nebulous, vague crime against a nebulous, vague institution. I am not harmed by your adultery, although I may be upset about it on your spouse's behalf.

If we're appealing to tradition- somehow, the ancient Israelites managed to have the Seventh Commandment and polygamy at the same time. I don't see the problem here.

Quote:
Another reason is the belief that it would undermine the interest in encouraging procreation from within a heterosexual monogamous union.
How? What interest is this, which requires that children come specifically from duos and not be raised by trios? If it's just about procreation- is it even slightly true that a three-way marriage suddenly means no babies?

Quote:
Also, there is a belief that children raised in a polygamous household would not fare as well as children raised in a monogamous household.
Is this belief founded on evidence? Does the evidence accurately reflect a problem with polygamy? Or does it reflect a problem with, say, hyper-fundamentalist hellholes like those breakaway Mormon sects?

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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-07 01:17pm
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amigocabal wrote:
Simon_Jester wrote:
Because it's not like they were a lot worse off being one of many kept women forced to work in the household and keep quiet and never answer back, compared to how they were being the only one? When none of your options include freedom of choice and equality of status, it distorts the things you choose for yourself.

That would be true.

On your earlier post on reasons not to allow polygamy, there are other reasons why people oppose polygamy. One reason is the belief that social acceptance of polygamy would sever the link between marriage and fidelity. A related reason is the belief that polygamy will also lead to acceptance of adultery, if fidelity and exclusiveness are torn from the foundation of the marital union. Another reason is the belief that it would undermine the interest in encouraging procreation from within a heterosexual monogamous union. Also, there is a belief that children raised in a polygamous household would not fare as well as children raised in a monogamous household.


I'd love to see the chain of logic that leads someone to conclude polygamy means that heterosexual couples are going to stop fucking each other's brains out at every opportunity. You could make the same argument against birth control but people are still shitting out babies.



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 Post subject: Re: Federal Court strikes down key part of DOMA PostPosted: 2012-06-30 09:25pm
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The House petitioned the Supreme Court. My observations.

- the House has standing. See e.g. INS v. Chadha, 462 U.S. 919 at 931n.6 (1983)
- the House points out that the Supreme Court consistently grants certiorari when legislation is struck down.
- the House claims that the court decision goes against Baker v. Nelson, 409 U.S. 810, 93 S. Ct 37, 34 L.E.2d 65 (1972)
- the House claims that the First Circuit had used a standard of scrutiny never explicitly articulated before by the Supreme Court.

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